Centerfield

A couple of thoughts. First, the "court filings" cited in the article listing the states with "closed or semi-closed" primaries are wrong or distorted, at least. It lists Louisiana as being in that group. In fact, Louisiana doesn't have ANY party primaries. Our primaries are entirely open primaries, any member of any party can run, if nobody gets 50%+1, then there is a runoff with the two highest vote getters, even if they are from the same party.

Second, I'm afraid this result mostly follows from the logic followed by the court in the decisions upholding campaign finance reform legislation. The shape of the political process is subject to regulation by the political process itself.

I guess you could also make the argument that this supports the freedom of assembly of the majority parties... they may not want to have as a member any person who votes in a primary other than their own.

Posted by: PatHMV at May 24, 2005 06:15 PM

Not sure if I agree with the comments on Clarence Thomas but I was intrigued by the inclusion of AZ in the list of states with closed primaries. Yes we do, though you can register for a party on the day of the primary (and theoretically change every year). Why did this catch my eye? I went from Independant to Republican when I moved to AZ. The democratic party here is much weaker and often the primary election was "the" race. Because I wanted to be involved in the voting for the candidate who would likely win (i.e. the Republican one) I joined the Republican party.

In fact it can be said (Janet Napolitano not withstanding) that we in AZ have three parties: the Conservative Republican party, the moderate Republican Party and the Democratic Party.

Posted by: c3 at May 24, 2005 07:51 PM

It seems astonishing how much vitriol is levelled - entirely unreasonably - at Justice Thomas. Brian, I have to ask - did you actually read Thomas' opinion (you can find it here if not), or just the AP story?

Although I haven't yet read the cases Thomas primarily cites as authority - Those wanting to read up on this will want to dig out: Democratic Party of United States v. Wisconsin ex rel. La Follette, 450 U. S. 107, 130 (1981); Tashjian v. Republican Party of Conn., 479 U. S. 208, 217 (1986); Timmons v. Twin Cities Area New Party, 520 U. S. 351, 358 (1997); California Democratic Party v. Jones, 530 U. S. 567, 574 (2000); Kusper v. Pontikes, 414 U. S. 51, 60-61 (1973); Nader v. Schaffer, 417 F. Supp. 837; Rosario v. Rockefeller, 410 U. S. 752 (1973); Anderson v. Celebrezze, 460 U. S. 780 (1983); - I will try to do so in the next few days, and I expect to find no major discontinuity.

Thomas dismisses any indication that the primary system disadvantages either the party or the people:

Oklahoma’s semiclosed primary system imposes an even slighter burden on voters than on the LPO. Disaffiliation is not difficult: In general, “anyone can ‘join’ a political party merely by asking for the appropriate ballot at the appropriate time or (at most) by registering within a state defined reasonable period of time before an election.” Jones, supra, at 596 (STEVENS, J., dissenting). In Oklahoma, registered members of the Republican, Democratic, and Reform Parties who wish to vote in the LPO primary simply need to file a form with the county election boardsecretary to change their registration.

He also contrasts this lack of limitation to the most relevant preceding case, Tashjian:

Tashjian, this Court identified two ways in which Connecticut’s closed primary limited citizens’ freedom of political association. The first and most impor-tant was that it required Independent voters to affiliate publicly with a party to vote in its primary. 479 U. S., at 216, n. 7. That is not true in this case. At issue here are voters who have already affiliated publicly with one of Oklahoma’s political parties.

Thomas concludes:

Oklahoma remains free to allow the LPO to invite regis-tered voters of other parties to vote in its primary. But the Constitution leaves that choice to the democratic process, not to the courts.

Certainly, Thomas' opinions are drier than Scalia's (in the sense that they are relatively humourless - but then, there's only one Nino), and this is no exception. But I don't fundamentally disagree with anything in his analysis, he effectively contrasts previous cases where the court has struck down Primary regulations with discriminative intent, and his opinion is a reasonable and convincing argument for why the LPO's freedom of association right is not violated here.

Compare Justice Thomas' direct and effective opinion with Justice Stevens' dissent, which I simply do not find as convincing as that offered by Justice Thomas. I do not accept Stevens' view that "we have lost sight of the principal purpose of a primary: to nominate a candidate for office" (Stevens dissent §I ¶1); a person remains the freedom to vote for whichever candidate they so wish, in either a general election or a primary - but in the former, they must excercise their freedom to associate with a party by excercising the fact of being associated with that party.

Nor do I accept Justice Stevens' contension that:

It is not enough that registered members of other parties may sim-ply change their registration. See ante, at 7 (plurality opinion). Chang-ing one’s political party is not simply a matter of filing a form with the State; for many individuals it can be a significant decision.

(footnote 1). It's true that changing one's registration - not party, as Justice Stevens would have, but registration - is a significant decision; but then, how is the choice of how to vote any less significant? It seems to me that, in a case that turns on the freedom of association, Justice Stevens is concerned with the right to vote without association.

So my question for you, Brian, is: do you dislike Thomas' writing style, do you dispute his analysis in this case, or do you just plain disagree with his conclusion?

~Simon
www.OlympiaSnowe2008.org

Posted by: Simon at May 24, 2005 10:45 PM

Dispute his analysis in this case and his rigid, narrow originalist reasoning in most all cases. AND just plain disagree. I especially disagree with his judgement where he feels free to characterize the burdens of the various election rules upon people as slight. That's really the weasel knife he uses...

If the libertarian or any other party wants to let democrats and republicans vote in their primary, the state should let them do it. Who is making the rules? Oh, democrats and republicans. I'm shocked!

The state has broad latitude and the burdens are slight just doesn't cut it for me. Why should there be ANY burden? Let's not lose sight of who is paying for the elections that are getting administered. Let the parties set their own rules for who can vote, and then if they are exclusionary of the people, then let the parties pay for their administration instead of the people. And let the states rules maximize choice for the people, who after all are paying for the elections.

Here's the thing. People tend to follow the path of least resistance. Even very small rules and carelessly set default preferences have huge effects upon behavior. Thomas's blithely described "slight" burdens are in fact effective barriers to more ideal democracy. It's Thomas's perverse pleasure to preserve such barriers if the letter of law suggests it to him. He was hand-picked to be a judge that would carry forward the philosophy of judges as buck-passers. Such arse-covering cowardice does not belong on the Supreme Court.

Of course the rights of association of the libertarian party are being infringed upon. Why an originalist would think himself free to let such an infringment pass because the infringement is slight is beyond me. Oh, I forgot. Formidable citing of precedent that grants the states broad latitude. My bad. I think Thomas has nightmares that he might actually set a precedent himself someday, instead of being viewed by history as the reliable 6th or 9th or 27th or 53rd voice to affirm that which was reasoned before him.

Posted by: bk at May 25, 2005 09:43 AM

Couple more things. Pat, re:your latter argument, wouldn't the Democrats and GOP be free to kick out party members for such heresy? As long as they could do that, their rights of free association are protected, right?

RE: primary status (open v. closed) on a state-by-state basis:

I looked into this briefly, and I saw many different numbers cited. I'm presuming that there are 3 categories–open, closed, and the hermaphrodites called semi-open. In that latter category, seems like they sometimes get classed in 1of the other 2, which would explain the widespread discrepancies.

If anyone knows of an authoritative source describing each states' rules, I'd love to see it.

Posted by: bk at May 25, 2005 10:08 AM

Brian,

If you think this is such a bad rule, you can get your "arse" out to Oklahoma and convince the citizens and legislature of that state to change the laws.

The Court (and I note that even O'Connor and Breyer joined in almost all of the opinion and in the judgment) didn't say Oklahoma has to do this, it said Oklahoma can do this. It was Oklahoma that made the policy decision. You don't like the policy, fine, vote the rascals out of office. Nothing prevents you from organizing "Libertarian Republicans for change" and seeking to control the primary process to put Libertarian Republicans into the general election.

As Justice Thomas and 6 of the 9 justices note, Oklahoma is in no way hindering people from joining the Libertarian Party. The Court is simply saying that it is acceptable for Oklahoma, given its broad power to regulate the "times, places, and manner for holding elections for Senators and Representatives", can legitimately decide that one can only be a member of one political party at a time. If you want to be a Republican, be a Republican. If you want to be a Libertarian, be a Libertarian. You can change at any time, with no fee, as often as you like. But you can only be in one at a time, and there are a few consequences that go along withh your choice, like that you can't vote in some other party's primary. If you want to choose which primary to vote in on an election by election basis, then you can register as an Indepedent.

As for kicking people out of a party, we basically have decided in this country that you can join whichever party you want, and the party has no control over it. The GOP is stuck with David Duke calling himself a Republican, and the Democrats are stuck with Michael Moore and that freaky U. of Colorado professor and Noam Chompsky.

As for why their should be ANY burden? Well, if the "associational right" of the individual cannot suffer any burden, then it would necessarily follow that the individual has a right to associate himself with any party he sees fit at any time. That would mean that a Republican would have a constitutional right to vote in the Democratic primary, and vice versa. Why should the state be allowed to burden my right to choose each minute of the day which party to officially belong to? You can, I hope, easily imagine the shenanigans that would lead to. Some burdens are necessary in order for the system to function. And the best place to determine those burdens is the democratic process.

By the way, I am delighted to hear that you have so little regard for the precedents of the Supreme Court. Remember that when Roe v. Wade is overturned, you approve of the concept.

I will close by saying, again, that I think centrism in general will gain far more traction if we stay focused on issues and the substance of policy, rather than joining the common political fray with name-calling, as you have done with Justice Thomas. The opinion is right or wrong, good or bad, whether it was authored by Thomas, Scalia, O'Connor, Kennedy, or any other justice.

Posted by: PatHMV at May 25, 2005 03:50 PM

The individual right of free association trumps the party's, as Pat points out. And Oklahoma's right to uniformly regulate their elections trumps the right of the parties to do whatever they want when using the state election apparatus to select party candidates.

Nope, can't kick 'em out of the party. Part of that individual "free associciation" right in the electoral system is the right to associate yourself with any party you choose. Just, only one at a time. And the party has no reciprocal right to associate itself with YOU if you're a member of another party.

Posted by: Tully at May 25, 2005 04:13 PM

Brian, I think Pat's nailed this one (above, at 03:50 PM), so I just wanted to re-iterate the point: it seems to me that your argument essentially fails to recognise the difference between undesirable (which is a political question, to be addresses by the state legislature) and unconstitutional (which is a judicial question to be addressed by the Supreme Court). You implicitly reject originalism in your post, and so your seeming aversion to such a distinction would make sense. Originalist judges, of which Justice Thomas is one, reject that the constitutional text can (or should be forced to) change with the times to comport with what it should or should not be unconstitutional, noting - as, IMO, it properly should - that such questions are best reserved to legislatures.

Simply put, I think you're wrong and that Justice Thomas is correct. The law is not unconstitutional, because it doesn't place unreasonable burdens upon the freedom of persons to associate with the party; if anything, as I noted before, it encourages them to associate with the party, by making it a requirement that they associate with the party in order to vote in its primary. Whether that's a good idea or not is not a constitutional question, because the Constitution should be interpreted as saying what it says, not what it might be a good idea for it to say.

Posted by: Simon at May 25, 2005 06:37 PM

The law is not unconstitutional, because it doesn't place unreasonable burdens upon the freedom of persons to associate with the party

Simon, if you could objectively define unreasonable, you'd win. But you can't. It's the weasel word that implies the necessity of applying judgement. You're saying that the burden the state is placing on people is reasonable. I disagree. I think it's unreasonable. I don't see the rationale why you can only be a member of one party. if you can be a mason, an episcopalian, in the ACLU, a log cabin republican, in AA, and so one, why only one party? Especially if BOTH the party and the people trying to join want it, which is clearly the case, since the plaintiffs in this case are the people being denied lib party membership due to membership in another party.

This leaves both your argument and Pat's as boiling down to "oh, it would be too hard for the state to keep track." So what? Add it to the extremely long list of things states have a hard time keeping track of and often don't do a good job of counting. Even as Earth keeps spinning.

You're not wrong that in some sense I'm conflating desirable with constitutional. I agree that they are not the same thing. But they are not mutually exclusive, and if one understands democracy one must acknowledge that they are supposed to be closely related.

It's perhaps unfortunate if my views on Clarence Thomas offend anyone, but I don't apologize for having them. I think he was a lousy choice from the get-go, and I think he's been at best an embarassing mediocrity on the bench. When he writes another lousy opinion, I'll be back.

Posted by: bk at May 26, 2005 10:38 AM

if you can be a mason, an episcopalian, in the ACLU, a log cabin republican, in AA, and so one, why only one party?
But that example isn't analagous here, Brian. Those are all different kinds of institution. You're right, of course; I'm a husband, a dad, a child, all at once; and of course a person can be a gay masonic episcopalian. But can a person be both gay and straight concurrently? No. Can they both be an episcopalian Christian and a Sunni Muslim, concurrently? No.

But in any instance, that's a debate about whether it's a good idea or not, and I deny that this is a question which the Supreme Court has any right to answer. It is for the Supreme Court - as Pat mentioned above - to say whether the state has the constitional right, under the existing text, to implement that idea in law.

I agree that [desirable with constitutional] are not the same thing. But they are not mutually exclusive, and if one understands democracy one must acknowledge that they are supposed to be closely related.
I absolutely agree - the Constitution, as it was originally written, was restrictive and inadequate. Furthermore, the "evolving standards of decency of American society" have gradually demanded modification of that document, and thus we see the passage of amendments like the 14th, 15th, 17th and 19th Amendments, for example. Of course the constitution can and might grow and evolve - but it can and must only do so through the amendment process, not through judicial fiat. The originalist constitution is very flexible. If the death penalty is such a terrible idea, convince enough of your fellow citizens, and abolish it. Pass an amendment and make it unconstitutional. Likewise, the second amendment. Likewise, the procedure for advice and consent in the Senate, likewise, the rights to abortions and prohibition on state sodomy laws. Likewise, the right of people to vote in any party's primary. All of these things may, or may not, be desirable, but that does not mean that the text of the constitution should be bent into any shape, it means that it should be amended. Because if the constituion can mean anything, it means nothing.

It frustrates me when people attack Clarence Thomas, because he really isn't a mediocrity. True, he happens to be on a court that has three of the smartest guys ever to sit on the court (WHR, Nino and Steve Breyer - I disagree with almost everything Steve says and stands for, but I wouldn't doubt his intellect for an instant). It's true that he generally takes on lower-profile (more "lawerly") cases, and that he is less of a firebrand than Nino, but his opions are concise, well-researched, adhere to precedent, and reflect an originalist viewpoint, the latter being mandatory on SCOTUS, in my opinion. It's not true to say that he's a Scalia clone; they are both originalists, yes, but a Catholic and a Methodist are both Christians, and they don't always agree either.

It seems to me that, when Democrats attack Justice Thomas or Justice Brown, what's REALLY making them mad is, "how dare these black people be Republicans! How dare they question that affirmative action is the same thing as civil rights! How dare they encourage blacks to question the view that blacks can't succeed because of institutional racism! Above all, how dare they undermine our claim to the black vote!". This position is morally bankrupt, in my view, and the attempt to discredit Thomas is part of it.

Posted by: Simon at May 26, 2005 11:21 AM

Not sure if you're talking about me, but I'm not a democrat, and I LIKE many of the minority conservative voices quite a bit.

For the sake of honesty, I need to admit that you undoubtedly know a lot more about Thomas's opinions than I do, and that I'm only a layman. Nevertheless, the next decision of Thomas that impresses me will be the first.

It's likely that our disagreement boils down to a difference of opinion on the merits of originalism.

In my view, statements such as if the constitution can mean anything, it means nothing are truisms, and amount to meaningless hyperbole. The constitution should be viewed neither as a pliable noodle nor as brittle china. I find the most outspoken originalists far too willing to subordinate their role of judgement to the legislative process. In my view, the judiciary is not supposed to be subordinate to the legislature.

Your argument that we have to make all such changes through legislation and amendment is, after all, quite hollow. Should any judge make a ruling which, in your view, overbends the constitution and makes it "meaningless," this judgement is just as easily remedied by a clarifying amendment as any percieved problem which you have declared must be resolved by legislation.

In my view, recourse to the judicary is the proper step when a slow and unresponsive legislature, for whatever reason, is unwilling or unable to keep up with the world. If recourse to the judicary were substantially diminished, which is the explicit goal of originalists, this would only embolden politicians and powerful, well-funded special interests.

I'm not suggesting that the constitution can mean whatever we want it to. But I am suggesting that it's ok for it to be a living breathing document open to interpretation. You weither belive that the constution has a spirit in addition to the letter of its words, or you don't. I believe some laws have a spirit which should be divined, and which CAN sometimes be interpreted in light of modern sensibilities. And here's my previously mentioned clincher on that being ok :if any such constructionist ruling is in error, in the view of the people, then can amend the constitution.

Which is something that we all know is hard to do. So when originalists throw "you should amend the constitution to fix this" in the faces of constructionists, we can throw it right back in your face. "No thanks, why don't you do that..."

Posted by: bk at May 26, 2005 01:34 PM

Brian,

That's certainly a consistent world view... it's just not the country we live in. You say:

In my view, recourse to the judicary is the proper step when a slow and unresponsive legislature, for whatever reason, is unwilling or unable to keep up with the world.

That's not what the U. S. Constitution provides for. It just doesn't. Nowhere. It gives all "legislative powers" to Congress, not the Courts. As Chief Justice Marshall said in the 1825 case of Wayman v. Southard:

The difference between the departments undoubtedly is, that the legislature makes, the executive executes, and the judiciary construes the law...

That is the role of the judiciary in this country. There is not a single constitutional provision you can point to that empowers the Courts to step up to correct a "slow and unresponsive" legislature.

And of course your comment begs the question, who decides? Who decides that the legislature is being "slow and unresponsive" as opposed to simply holding different beliefs and different policies than the 9 old people on the Supreme Court bench? Take abortion. The legislatures were not being "slow and unresponsive", they were doing what the people who voted for them wanted. Many legislatures in recent years have consistently enacted laws which provide for parental notification requirements, etc., yet Justice Kennedy never says, well, those used to be unconstitutional, but we see the trend among legislatures is to enact them, so they're constitutional now. Why is your view of abortion or the death penalty or any other policy so much better that you can say it should be implemented by the courts even if a majority of the people don't like it?

Here's the thing with your "back in your face" argument. If the court rules something unconstitutional, it can ONLY be changed by constitutional amendment. If Justice Thomas had ruled the way you want in this Oklahoma political case, then the only way to change would be through the very cumbersome and appropriately very rare process of constitutional amendment. But because he ruled in favor of the democratic process, the rule you don't like can be changed by a mere simple majority of any number of elected bodies. Congress could pass a law to say what you want, your own state legislature could, and in Oklahoma, their election commission could simply changes the rules. You are so cynical about politicians and the political process. It seems that any law you don't like, you just ascribe to having been passed by the evil politicans and special interest lobbyists, which the lovely fair impartial courts should come in and trample on.

But if your view on the role of courts is correct, than judges appropriately make policy decisions, and thus it becomes appropriate for anybody in charge of selecting judges (voters, legislators, etc.) to evaluate the likely policy choices which would be made by that judge. Do you really want to give Tom DeLay a legitimate opening to evaluate all future judicial nominees based on what policies they would implement in a future Terry Schiavo case? I sure don't.

Posted by: PatHMV at May 26, 2005 03:18 PM

That is the role of the judiciary in this country. There is not a single constitutional provision you can point to that empowers the Courts to step up to correct a "slow and unresponsive" legislature.

I never said the constitution explicitly empowers them to do this. As you admit, they can "construe" the law. And I may be wrong, but I don't believe the constitution explicitly says that this construing must be done solely on the basis of the unchanging letter of the law as opposed to its evolving spirit.

You are so cynical about politicians and the political process. It seems that any law you don't like, you just ascribe to having been passed by the evil politicans and special interest lobbyists, which the lovely fair impartial courts should come in and trample on.

Well now you're just cracking me up Pat. I'm much more of a case-by-case guy than that.

But if your view on the role of courts is correct, than judges appropriately make policy decisions, and thus it becomes appropriate for anybody in charge of selecting judges (voters, legislators, etc.) to evaluate the likely policy choices which would be made by that judge. Do you really want to give Tom DeLay a legitimate opening to evaluate all future judicial nominees based on what policies they would implement in a future Terry Schiavo case? I sure don't.
I don't think judges should make policy decisions, and I do think they should be reluctant to construe the spirit of a law broadly. But not constained from doing so. Again, I'm more of a case by case guy. As a lawyer, you must know that broad principles can only go so far before they conflict with related broad principles. I was probably a little off the mark in speaking of "unresponsive" legislatures. The fact is that often (and maybe increasingly), the world gets ahead of the law. During this interim, someone may suffer an injustice and seek redress based on an appeal to the spirit of some law incluing the law of the constitution. When that happens, a judge is faced with deciding whether to extend the spirit of the law and use his judgement to provide reasonable redress. I think in such instances that a judge should weigh the injustice against the spirit and make a decision on a case by case basis. The greater the in justice, the greater the latitude.

In such instances, IMO it's cowardly buck-passing to tell the aggrieved party that, hey, you're getting the shaft but my hands are tied. Try your congressman. Next! Clearly your mileage varies.

As always, It's been a pleasure to disagree with you...

Posted by: bk at May 26, 2005 03:48 PM

Brian,

It's one thing to apply the law to new and changing facts. For example, the invention of the telephone and then the internet required a new interpretation of the Fourth Amendment's protection that we may be secure in our houses and papers from warrantless searches. But it is an entirely different matter to say that changing moral attitudes of society have brought about a change in the constitution. And this is precisely the approach that Justice Kennedy, for example, used in the recent Roper decision finding the execution of persons who were minors at the time of the offense to be unconstitutional. Just 16 years before, as I noted at (all too great) length in another recent thread, Justice Kennedy had himself approved the exact opposite conclusion. The only difference? 5 states changed their mind on the policy issue in those 16 years.

That is the example of judicial policy making that I find horribly offensive and undemocratic. That is not seeking redress based on appeal to the spirit of the law... that is just flat-out making new law.

I can even support the Gideon v. Wainwright case which suddenly discovered a new 6th Amendment right to paid counsel, based on the fact that between 1789 and 1963 the role of the attorney in handling all aspects of cases had so vastly increased. But Roe, Roper, Lawrence... all these cases did not simply apply old law to suddenly new and unprecedented circumstances. Minors commiting murders, abortions, homosexuality, all these have existed since the Constitution and its amendments were adopted. When the Court suddenly decides that the moral fiber of America has changed in these old circumstances, the Court has usurped the legislative power of Congress and the states.

And I probably went too far in the heat of debate with my crack about your cynicism. But in the law, you can't have purely a case-by-case outlook. Every decision impacts other decisions. Every new rule impacts other rules. We have the rule of law, not of situational judgments. We must be able to reduce the law to a somewhat cohesive set of rules so that we may all abide by those rules without resorting to the courts at every turn.

Posted by: PatHMV at May 26, 2005 05:25 PM

But in the law, you can't have purely a case-by-case outlook. Every decision impacts other decisions.
Pat, true dat, too. But my meaning in talking about a "case-by-case" basis is the meaning that you yourself make clearer in your post, where you cite some cases that you feel were reasonable extensions, reasonable construals, and other cases that you don't feel were reasonable extensions.

I found the reasoning in the Roper decision peculiar myself. It may set a dangerous precedent on several different fronts (not just originalism vs. construction, but also it pertains to issues of sovereignty vs. international law)if it's reinforced by future decisions and becomes a clear precedent instead of a matter of contention. I don't like it.

I'm still willing to give judges latitude to construe, based on a variety of concerns. For example, when a judge ruled that "separate but equal" was inherently unfair, he pretty much decided that was morally right, he didn't really base it on the letter of any statute, did he? Getting back to C Thomas, I have to wonder whether he'd have ruled that separate but equal fell under the category of things the state had broad latitude to control, or whether it was more appropriately a matter for the legislature.

A number of controversial rulings have been handed down by humans in pretty singular circumstances, and in those cases, when I put myself in their shoes I realize I could have lived with going in several ways.

When I think about, civil rights decisions AND Roe, I think about how the judges, as humans, had to weigh the effect of pulling back and preserving the status quo. Neither you nor I can know whether a different decision would have led to more strife or less, but a judge who doesn't weigh such things is in my view, a bad judge, unapreciative of the overriding human demands history places on you in such circumstances.

I also think of it in the 2000 recount decision. Prior to the ruling, my sense was that the most just outcome was a complete statewide re-vote. But I also acknowledged that prolonging the controversy without a final decision would have been unprecedented in electoral history. It could have developed past controversial into destabilizing. So if the judges found a way to say "game over" I was willing to accept that, even if the reasoning was arguable.

My whole point really is that sometimes judges, as humans, need to somehow find a way. Because the circumstances taken in total demand it. While this should be rare, it is nevertheless essential. Judges are not supposed to be just technicians. And that's what I hate about CT, he's a technician.

Posted by: bk at May 27, 2005 09:31 AM

Brian,

I agree with much of your last post. I guess I just don't agree that the decision about primary elections provides much evidence to support your complaint about Justice Thomas. And remember that even though he's the author of the opinion, it was joined by a majority of the rest of the court. And they have the voting on the result before they have the assignment of the opinion writing, so the result itself must be held equally against all of the majority, not just Thomas.

Posted by: PatHMV at May 27, 2005 11:15 AM